The Health 202: Three reasons Obamacare might not get another big SCOTUS moment

Will Obamacare get a fifth major hearing in the nation’s highest court? Probably not — but never say never when it comes to the nation's controversial health-care law.

There’s a new legal challenge raising the possibility — albeit a slight one — that the Supreme Court could hear a reprise of the first major Affordable Care Act lawsuit from six years ago. Twenty conservative, ACA-opposing states, led by Texas, have filed suit in federal court arguing the entire law is invalid because the reason the court found it constitutional — its penalty for lacking health coverage — will go away in January under the tax overhaul passed by Congress.

The case went relatively unnoticed until last week, when the Trump administration made legal waves saying it won’t defend the ACA against this new challenge. Such a posture is rare but not unprecedented (recall that the Obama administration refused in 2011 to defend the federal law banning the recognition of same-sex marriage because it considered the legislation unconstitutional).

If you consider recent history, it’s probably about time for another dramatic, Obamacare-flavored Supreme Court case. Just about every other year since Congress has passed the ACA, the Supreme Court has heard a challenge to the sweeping health-care law.

There was the 2012 NFIB v. Sebelius decision, which upheld the law’s individual mandate to buy coverage. Two years later, the court eased contraception coverage requirements for certain corporations.

Then, in 2015, there was the infamousKing v. Burwell ruling in which the court said insurance subsidies could be provided even in states relying on the federal Healthcare.gov website instead of running their own marketplaces. The following year, the court heard a challenge to an “accommodation” for nonprofit employers that objected to covering birth control, although it ultimately punted that decision.

How serious, really, is this latest challenge from Texas and Co.? We can’t say with 100 percent certainty, especially considering that no one took the King case very seriously at first. But it’s hard to imagine the Supreme Court is itching to reconsider the same old questions of A) whether it’s constitutional for the government to require people to buy health insurance and B) whether the rest of the law can stay in effect without the individual mandate.

While the news about the latest Obamacare challenge sucked up a lot of oxygen last week, here are three reasons such a case may not be destined to reach SCOTUS:

1. There’s no longer a question of congressional intent.

The whole 2012 case revolved around this key question. Can the government constitutionally require people to buy health-care coverage?

Both the Obama administration defending the law and its challengers agreed the individual mandate was key to the entire law. Without requiring healthy people to buy coverage, it would be too punitive to require insurers to cover sicker, expensive people because of the exorbitant costs. The entire law was viewed as standing or falling based on the requirement to buy insurance.

Now Congress has removed the penalty for being uninsured – raising the question of whether the mandate is even a mandate anymore. If the mandate is no more, than the entire law has no basis on which to stand, Texas is arguing.

“Once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall,” the plaintiffs wrote.

But some legal scholars — including several prominent libertarians — have noted that because Congress has removed the penalty but left the rest of the law in place, it has made clear the mandate is not in fact essential to the rest of the ACA.

“There is a big difference between a court choosing to sever a part of a law, and Congress doing so itself,” Ilya Somin, a law professor at George Mason University, wrote on Reason.com in February. “Congress has already effectively neutered the individual mandate, while leaving the rest of the ACA in place.”

Could the federal government force people to buy broccoli? That was one of the questions considered in the NFIB's 2012 challenge to the ACA. (Jennifer Chase for The Washington Post)

2. Chief Justice John G. Roberts Jr. probably isn’t eager to take up another Obamacare case.

Roberts, a noted conservative on the court, shocked many when he upheld the mandate in 2012 -- not under the federal government’s power to regulate interstate commerce but because of its power to tax citizens. In the majority opinion, Roberts defined the penalty for being uninsured as a “tax” in a legal twist that just about no oneanticipated.

Now without that “tax,” it’s fair to ask whether Roberts’ entire legal basis for upholding the law would crumble. It’s a question Roberts may not want to revisit. He took heaps of criticism from conservatives and Republicans back in 2012 for writing the 5-to-4 decision upholding nearly all of the ACA.

“Given the widespread criticism of Roberts’s opinion, it would be difficult to imagine Roberts taking another 180-degree-turn on such relatively recent precedent,” Jonathan Turley, a law professor at George Washington University who has followed Obamacare litigation, told me.

Granted, just four of the nine SCOTUS justices would have to consent for the case to be accepted under court rules. So if the three remaining justices who sided with striking the ACA – Justices Anthony Kennedy, Clarence Thomas and Samuel Alito — plus the newest justice, Neil M. Gorsuch, were open to taking the case, a potential hearing is a possibility.

3. The mandate appears less important than previously thought, anyway.

To reiterate, the mandate was viewed in 2012 as the glue that held the ACA together. To put it another way – it was the stick to prod people into buying coverage, while the law’s insurance subsidies and Medicaid coverage were the carrots to entice them.

But it turns out the mandate is less effective in motivating Americans to get coverage than previously predicted. Many health-policy experts have argued the penalty just wasn’t sizable enough to convince people to buy coverage they felt they couldn’t afford.

In its most recent projection, the Congressional Budget Office said around 8 million people would be uninsured in a decade without the mandate — a projection one-third lower than the agency’s previous forecast of 13 million uninsured.

The case, currently before the U.S. District Court for the Northern District of Texas in Fort Worth, is scheduled for arguments later this year. Nicholas Bagley, a health-law professor at the University of Michigan, said SCOTUS consideration would depend on what the lower courts do — but he’d be surprised if it went that far.

“The case is so odd, and the arguments so strained, and I’d be surprised if the Supreme Court ended up taking it,” Bagley wrote me in an email.

POST PROGRAMMING ALERT: On Wednesday, The Post will host some of the country’s leading mental-health experts and policymakers for a live discussion of strategies to address the most pressing mental-health challenges, including the increasing rate of suicide, combating the stigma associated with mental illness and improving access to care for at-risk populations. Speakers include Sens. Brian Schatz (D-Hawaii) and Thom Tillis (R-N.C.) (to be interviewed by your Health 202 author), National Alliance on Mental Illness chief executive Mary Giliberti, National Institute of Mental Health Director Joshua A. Gordon, and New York City first lady Chirlane McCray. Register to attend here.

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AHH: Delegates at the American Medical Association's annual meeting this week rejected a recommendation the AMA maintain its opposition to medically assisted death, instead voting for the organization to continue reviewing its guidance on the issue, The Post's Lindsey Bever reports. Lawmakers voted by a margin of 56 to 44 percent to have the AMA’s Council on Ethical and Judicial Affairs keep studying the current medical ethics guidance. That position, adopted a quarter-century ago, labels the practice “physician-assisted suicide” and calls it “fundamentally incompatible with the physician’s role as healer.”

"The council spent two years reviewing resolutions, not so much on whether to support the practice but on whether to take a neutral stance on what has become a divisive issue among health-care providers," Lindsey writes. "Even with delegates sending the report back for further discussion, their vote Monday means the AMA’s guidance remains unchanged for now. Andrew Gurman, immediate past president, said in a statement that such discussion would take place at a future policymaking meeting."

OOF: The world is waiting to see whether thousands of doses of vaccines dispatched to health workers in Congo will halt the latest Ebola outbreak. The experimental vaccine could help stop the disease's most serious outbreak since the 2014 epidemic in West Africa faster than the traditional approaches doctors have tried for decades, the AP’s Sam Mednick and Lauran Neergaard report.

Thousands of doses created by the Public Health Agency of Canada and owned by U.S. pharmaceutical giant Merck were rushed in to affected areas. “Health experts say the next two weeks will be critical in determining whether the outbreak will be brought under control,” Sam and Lauran write. “The WHO is now shifting efforts to more remote areas to contain the outbreak. The organization has predicted there could be up to 300 cases of Ebola in the coming months.”

But getting the vaccines in good condition to the right people is a real challenge. “The shots must be transported deep into forests with few paved roads without it spoiling in the heat," Sam and Lauran write. "Health workers have to identify and track down anyone who’s had contact with a sick person. Hardest of all, they must persuade a scared and wary population that shots pushed by foreigners could save their lives.”

In this photo, a makeshift memorial continues to grow outside the Pulse nightclub, the day before the one-month anniversary of a mass shooting in Orlando. (AP Photo/John Raoux)

OUCH: Two years after the Pulse nightclub shooting in Orlando, the first five emergency responders describe the nightmares, flashbacks and outbursts they've since experienced, in this deep dive by WMFE’s Abe Aborava. “Even though most had responded to gruesome scenes of murder, suicide and car accidents, that didn’t prepare them for the psychological injury of PTSD," Abe writes. "Going forward, they would relive June 12 in flashbacks and nightmares, see danger behind every closed door, and become irritable and impatient with spouses and co-workers.”

Two of the five responders were fired for mistakes on the job following the shooting, one was never cleared to return to work and two were offered work reassignments in order to receive treatment. Orlando Police Department Chief John Mina told Abe that officers dealing with PTSD can come forward to request reassignments or treatment without it affecting future promotions. “We wouldn’t want someone out on the street who was having issues,” Mina said. “We may be held liable because of that, because we knew about that. But again, I’ll go back to the fact that they don’t have to come forward. They can receive treatment anonymously.”

Twenty-six first responders to the Pulse shooting, including the five featured in the story, were evaluated or treated at the University of Central Florida’s Restores clinic, Abe reports. “I’ll never be the same [as] before Pulse,” Officer Alison Clarke, who is going through the Restores program, told Abe. “You can recover to a certain extent. At least for me, I can recover to a certain extent. But I know that I’ll always have some type of small anxiety issue. It’s just learning how to live with it and function with it.”

— Two studies published yesterday warn that editing cells’ genomes with CRISPR-Cas9 could increase the risk of cancer. The studies found cells whose genomes were successfully altered by the editing tool had the potential to develop tumors in patients, which may pose a major potential hurdle for the technology, STAT’s Sharon Begley reports.

Experts are taking the finding seriously, even amid the enthusiasm over CRISPR for its potential to help scientists treat and possibly even cure genetic diseases. Sam Kulkarni, chief executive of CRISPR Therapeutics, told Stat the results of the studies are “plausible.” Kulkarni acknowledged it is “something we need to pay attention to, especially as CRISPR expands to more diseases. We need to do the work and make sure edited cells returned to patients don’t become cancerous.”

— Tune in this morning to the Senate Health, Education, Labor and Pensions Committee, where Health and Human Services Secretary Alex Azar will appear to take questions on his agency's plan to combat high prescription drug prices. Expect lots of drilling by Democrats over why the administration has backed away from Trump's previous support for allowing direct Medicare Part D price negotiations. And top Republican Lamar Alexander said he especially wants to hear more about proposals in Trump's blueprint to prevent branded drugmakers from delaying generics from going to market and end the so-called "gag rule" preventing pharmacists from telling patients about how to get drugs more cheaply by paying for them out-of-pocket.

— States got guidance yesterday from HHS's Centers for Medicare and Medicaid Services on how to leverage Medicaid to combat the opioid abuse epidemic. The guidance includes information and recommendations on how to make sure evidence-based care is provided to infants born exposed to opioids and how to enhance federal funds for telemedicine practices that could help patients struggling with opioid addiction.

The number of infants with opioid exposure increased nearly five times between 2000 and 2012, the agency noted. “The number of American infants born dependent on opioids each day is heartbreaking,” HHS Secretary Alex Azar said in a statement. “Today’s announcement reflects the Trump Administration and HHS’s commitment to helping states use Medicaid to support treatment for this condition and other challenges produced by our country’s crisis of opioid addiction.”

— David Pasch has left HHS, where he served as digital director, for a position with the Republican digital firm Targeted Victory. Even if you don't know Pasch, you may recall the “Creepy Uncle Sam” anti-Obamacare ads he helped craft at his former job with Generation Opportunity back in 2014:

GuideWell Mutual Holding Corp., the parent company of health insurer Blue Cross and Blue Shield of Florida, appointed former Health and Human Services Secretary Sylvia Mathews Burwell to its board of directors Monday. It's a paid position, but GuideWell declined to give specifics.

A federal investigation will examine the way University of Southern California officials handled sexual harassment claims. The university is facing lawsuits from women about a former gynecologist on campus.